Comparison of Pre-Trial in Ordinary Procedure (Rule18), Preliminary Conference in Summary Procedure (Section

7, Rules on Summary Procedure), Hearing/JDR in Small Claim Procedure (Sec. 16-22, Rules on Small Claims
Procedure) by Astrid Beatrice C. Faller

General Rule: Sec.7 of Summary Procedure – The rules on pre-trial in ordinary cases shall be applicable to the
preliminary conference unless inconsistent with the provisions of this Rule.

 As to the duty of setting the case for pretrial, preliminary conference and hearing and the period within
which to set the case for the same

Ordinary procedure:

AM Circular 3-1-09, cited in Soliman v. Fernandez(2014) – Within 5 days from the date of filing the reply, the
plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said
motion within the given period, the Branch COC shall issue notice of pretrial.

Summary Procedure:

Sec. 7 – Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. (NB:
This shall also be set by ex parte motion of the plaintiff – applying the general rule, but this time the motion must
be filed within 30 days not 5 days, and if the plaintiff fails to file such ex parte motion it should be the branch clerk
of court of the MTC that should set the case for preliminary conference).

Small Claims Procedure:

Sec. 10 – If no ground for dismissal is found, the court shall forthwith issue Summons (Form 2-SCC) on the day of
the receipt of the Statement of Claim, directing the defendant to submit a verified Response. The court shall also
issue a Notice (Form 4-SCC), directing them to appear before it on a specific date and time for HEARING, with a
warning that no unjustified postponement shall be allowed, as provided in Section 19 of this Rule. (NB: So you see,
it is the court who sets the case for hearing and is sent to the defendant together with the summons, not after the
filing of the last pleading or answer. In small claims therefore, the hearing is set even before the response is filed
by the defendant).

 As to the nature and purpose

Ordinary Procedure:

Sec. 2, Rule 18 of the Rules of Court (See codal)

Summary Procedure:

The same as with Ordinary Procedure (applying the general rule)

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Small Claims Procedure:

Sec. 21 – At the hearing the judge shall exert efforts to bring the parties to an amicable settlement of their dispute.
Any settlement or resolution of their dispute shall be reduced into writing, signed by the parties and submitted to
the court for approval. (You call this hearing for settlement, mediation/ Judicial Dispute Resolution).

 As to the requirement of a pre-trial brief and effect of failure to submit a pre-trial brief

Ordinary Procedure:

Sec. 6 – The parties shall filed with the court and serve on the adverse party, in such manner as shall ensure their
receipt thereof at least three (3) days before the date of the pre-trial their respective pre-trial briefs which shall
contain, among others... (see codal)

Failure to submit the pre-trial brief in the manner prescribed shall be cause for dismissal of the complaint and such
dismissal is with prejudice, unless otherwise ordered by the court.

Summary Procedure:

There is also a requirement of submission of a pre-trial brief, which in this case shall be called a preliminary
conference brief, following the general rule.

The effect of failure to submit the preliminary conference brief in the manner prescribed shall likewise be cause to
dismiss the case with prejudice, unless otherwise ordered by the court, following the general rule.

Small Claims Procedure:

Submission of Pre-Trial brief is not required under the Small Claims procedure, for as long as the parties personally
appear or is properly represented at the hearing for settlement.

 As to the requirement of personal appearance and appearance through a representative

Ordinary Procedure:

Sec. 4 – It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a
party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution,
and to enter into stipulations or admissions of facts and of documents.

Summary Procedure:

Apply the rule in Ordinary Procedure, following the general rule.

Small Claims Procedure:

Sec. 16 – The parties shall appear at the designated date of hearing personally. Appearance through a
representative must be for a valid cause. The representative of an individual party must not be a lawyer, and must
be related to or next-of-kin of the individual party. Judicial entities shall not be represented by a lawyer in any
capacity.The representative must be authorized under a Special Power of Attorney (Form 5-SCC) to enter into an
amicable settlement of the dispute and enter into stipulations or admissions of facts and of documentary exhibits.

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  As to effect of failure to personally appear or failure to secure the appearance of a representative by a
Special Power of Attorney

Ordinary Procedure:

Failure on the part of the Plaintiff

Sec. 5 –

The effect of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court.

Failure on the part of the Defendant

Sec. 5 –

A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex-parte
and the court to render judgment of the basis thereof.

Summary Procedure:

Failure on the part of the Plaintiff

Sec. 7 –

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of the
complaint. (NB: The dismissal shall be with prejudice, unless otherwise ordered by the court, following the general
rule).

Failure on the part of the Defendant

This is a part where there is inconsistency between ordinary procedure and summary procedure, therefore we
couldn’t apply the general rule.

Sec. 7 –

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6
hereof (NB: Section 6 of Summary Procedure refers to the effect when the defendant fails to file an answer within
10 days from receiving summons that is, the court may, motu proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein).

So you see, the court will render judgment right away, unlike in ordinary procedure where the court will allow ex-
parte presentation of evidence by the plaintiff. Also, in summary procedure, the extent of relief that may be
ordered by the court is only limited to what is prayed for in the complaint, in ordinary procedure, after the ex-
parte presentation of evidence, the extent of relief that may be ordered by the court shall be so much as have
been proven by the evidence presented by the plaintiff ex-parte – remember amendment to conform to evidence
in Sec. 5 of Rule 10.

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Small Claims Procedure:

Failure on the part of the Plaintiff

Sec. 18 –

Failure of the plaintiff to appear shall be cause for the dismissal of the claim WITHOUT prejudice. (NB: So you see,
the dismissal hear is without prejudice, unlike in ordinary procedure and summary procedure, where the dismissal
is generally with prejudice, unless otherwise ordered by the court).

Failure on the part of the Defendant

Sec. 18 –

Failure of the defendant to appear shall have the same effect as failure to file a response under Section 12 of this
Rule. (NB: Sec. 12 provides that should the defendant fail to file his response within the require period that is a
non-extendible period of 10 days, and shall likewise fail to appear at the date set for hearing, the court shall render
judgment on the same day as may be warranted by the facts).

So you see, the effect of failure of the defendant to appear at the hearing for settlement/JDR has a similar effect as
that of failure of the defendant to file a response, it is as if the defendant has not filed a response; therefore, the
court is justified to render judgment right away based on the accomplished and verified statement of claim by the
plaintiff together with the evidence that he may have attached therewith and the extent of relief that may be
granted shall only be limited to what is prayed for therein.

 As to requirement of a pre-trial order/ preliminary conference order (record of preliminary conference)

and time within which it should be issued and the contents thereof

Ordinary Procedure:

Sec. 7 – The proceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an
order which shall recite in detail the matters taken up in the conference, the action taken thereon, the
amendments allowed to the pleadings, and the agreements and admissions made by the parties as to any of the
matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be
tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to
prevent a manifest injustice.

AM 3-1-09 – The pre-trial order shall be issued within 10 days after the termination of the pre-trial.

Summary Procedure:

Sec. 8 – Within five (5) days after the termination of the preliminary conference, the court shall issue an order
stating the matters taken up therein, including but not limited to:

a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof.
b) The stipulations and admissions entered into by the parties
c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties,
judgment may be rendered without need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order.
d) A clear specification of the material facts which remain controverted; and

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 e) Such other matters intended to expedite the disposition of the case.

Small Claims Procedure:

No need to issue an order to such effect.

Sec. 22 – If efforts at settlement fail, the hearing shall proceed in an informal and expeditious manner and be
terminated within one (1) day.

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